Complainant

Respondent

Anonymised Parties

A Security Manager

A Night Club

Representatives

Gerard Kennedy SIPTU

Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013334-001

28/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00013334-002

28/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013334-003

28/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013334-004

28/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013334-005

28/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00013847-001

11/09/2017

The Complainant commenced employment with the Respondent company on the 01/07/2013 in the capacity of Security Manager. He was paid €1000 gross a week. His employment was terminated on 08/06/2017. The Complainant claims that he was unfairly selected for redundancy, he did not receive his redundancy entitlement, he did not receive his minimum notice, annual leave and public holidays entitlements and he was owed €4000 in outstanding wages.

At the time the adjudication hearing was scheduled to commence, it became apparent that there was no appearance by or on behalf of the Respondent. I am satisfied that the Respondent was notified of the venue, date and time of the hearing. I waited some time to accommodate a late arrival.

The Respondent did not attend the hearing or provide any explanation for failure to do so.

SIPTU representative on behalf of the Complainant recognised that it is unusual for a complainant to pursue a claim of unfair dismissal and simultaneously pursue a claim under the Redundancy Payments Acts. However, he submits that in the circumstances particular to this case this approach is warranted. It is not precluded for a worker to pursue a complaint of unfair dismissal where their selection for redundancy is regarded as being unfair, unreasonable or devoid of fair procedures. SIPTU representative relies on extensive case law and argues that the former Rights Commissioner Service, the Adjudication Service and the Employment Appeals Tribunal have consistently compensated workers in cases where it has been proven that either the selection criteria or dismissals process were faulty. In support of this contention SIPTU presented decisions UD41121/06/MR, UD 78138/09/MR, ADJ-00005507, ADJ-00002590 and UD1259/2012.

SIPTU submits that in all the above case compensation was awarded in addition to the statutory entitlement due to unfair selection procedures by the employer. In the Complainant’s case, he was selected for redundancy without any recourse to fair procedures, without any selection criteria and without the opportunity of being represented. In addition, the employer began advertising for new staff some 4 days after the Complainant’s dismissal. A job advertisement for Security Staff was posted on the Respondent’s social media page on the 14/06/2017. In these circumstances SIPTU contends that the Complainant’s selection for redundancy amounts to an unfair dismissal and requests that appropriate compensation is awarded.

In selecting employees for redundancy there is a clear onus on any employer to ensure that the selection process is both transparent and fair. In my view, the selection process used by the Respondent was neither transparent nor fair. The evidence before me as presented by the Complainant shows that the Respondent failed to discuss their decision-making process in respect of redundancy with their employees or their representatives prior to making the Complainant redundant. The Complainant was not consulted about alternative options or notified that his job was at risk until he was notified that his position was being made redundant on the 8th June 2017. At no stage did the Respondent explore other options. The Complainant was not given any opportunity to try and influence the Respondent prior to the decision being acted upon. He was given no opportunity to seek representation or advice. The Respondent did not engage with SIPTU who sought a meeting to discuss the matter. Following the termination of employment, the Respondent’s solicitor, in his email confirmed that the Complainant is being made redundant and offered a payment of €6000 in respect of his redundancy entitlement. However, this payment has never been made.

Furthermore, the Complainant was made redundant on Thursday 8th June 2017 and on Tuesday 12th June 2017 the Respondent advertised on his social media page “We are hiring for Security Staff full and part time to joint our growing team” [sic]. The Complainant was not informed or considered for the role.

There was no evidence proffered by the Respondent or on their behalf to show that any or adequate consideration was given to whether or not the Complainant selection for redundancy was fair.

I note that the Complainant was out of work for over 13 weeks. He secured a new employment on 9th September 2017. However, in order to do so he was required to relocate with his family to another location in the country. His earnings are also significantly reduced and he now earns €500 gross per week.

Taking the evidence available to me into consideration I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded and relevant to the instant case where compensation only is sought, Section 7(1) (c) (i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €32,500 (13 weeks x €1000 gross plus 39 weeks at €500 a week loss due to the reduction of wages) subject to any lawful deductions, within 6 weeks of the date of this decision.

SIPTU, on behalf of the Complainant submits that it is the company’s contention that they had no further work for the Complainant and that they were making his position redundant. They have not disputed the unions understanding of the company’s position as outlined in both email and letter format. The solicitor firm acting on behalf of the Respondent further confirmed that the Respondent was treating the Complainant’s dismissal as a redundancy by making the offer contained in their email. SIPTU submits that this offer represented a miscalculation of the statutory redundancy payment due to the Complainant. Based on his start date, termination date and rate of pay the actual due payment stands at €5328.00.

The Respondent did not attend the hearing or provide any explanation for failure to do so.

I note the Complainant’s representative’s argument that the Respondent confirmed that the Complainant’s position is being made redundant and therefore he is entitled to his statutory redundancy. However, compensation may not be awarded for both statutory unfair dismissal and statutory redundancy (see F. Meenan, “Employment Law” 21-60). In Cusack v Dejay Alarms Ltd. [2006] E.L.R. 51 the Employment Appeals Tribunal confirmed that an employee cannot be awarded compensation twice on the grounds that the employee was dismissed by reason of redundancy and for unfair dismissal. Any amount that is received already by way of a redundancy lump sum is set off against unfair dismissal compensation. A claimant may not receive both statutory redundancy and/or an ex gratia payment along with compensation for statutory unfair dismissal. In Employee v Employer UD 1114/2012 the dismissal was held to be an unfair dismissal but the Respondent went into liquidation and the claimant would have lost her employment in any event. The employee was awarded loss of earnings for the six months but also the equivalent sum for statutory redundancy. The redundancy sum was awarded as part of the employee’s compensation for unfair dismissal. The claim under the Redundancy Payments Acts was dismissed.

I reviewed the case law referred to by SIPTU. I note that in all cases the claimants brought only unfair dismissal claims before the Employment Appeals Tribunal, the Rights Commissioner or the Adjudication Officer. While the respective deciding body acknowledges the fact that redundancy payment has been made to the claimant, no decision was made in any of the cases referred to in respect of redundancy entitlements of the claimants under the Redundancy Payments Acts, 1967.

Having reviewed the circumstances of the case before me I find that the Complainant cannot be awarded compensation twice. I have awarded the Complainant compensation under the Unfair Dismissal Acts, 1977 as outlined above. Accordingly, the claim under the Redundancy Payments Acts, 1967 is dismissed.

SIPTU on behalf of the Complainant submits that the Complainant received notice of the termination of his employment the day the employment relationship was ended by the Respondent. Due to his four years’ service the Complainant was entitled to a minimum of two weeks’ notice or payment in lieu of same under the Act. The Complainant received neither.

The Respondent did not attend the hearing or provide any explanation for failure to do so.

The evidence before me confirms that the Respondent dismissed the Complainant with immediate effect and did so without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4.2 (b) requires two weeks’ notice if the employee has been in the continuous service of his employer for two years or more.

In accordance with Section 4(2) d of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to two weeks’ notice as he had over two years’ service at the time of his dismissal. In accordance with Section 12(1) of the Act I direct that the Respondent pay the Complainant compensation of €2000 amounting to two week pay within 42 days of the date of this decision, subject to any lawful deductions.

SIPTU submits that since commencing employment with the Respondent company the Complainant has never received any entitlement to paid annual leave. In the 6 months prior to his dismissal he would have accrued an entitlement to 2 working weeks paid annual leave. He did not receive any. In addition, given the requirements of the Organisation of Working Time Act SIPTU submit that the Complainant is also entitled to be compensation for the clear breach of his legislative entitlements. In support of this argument SIPTU relies on the provisions of the Von Colson Judgement. In further support of this argument SIPTU cited the Labour Court determination DWT13146, Rights Commissioner recommendation R-147572-WT-14 and ADJ-00007042 where workers were awarded compensation in addition to monies due under the Organisation of Working Time Act.

The Respondent did not attend the hearing or provide any explanation for failure to do so. There was no evidence proffered by the Respondent or on their behalf to show that annual leave entitlements were given to the Complainant.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, an Adjudication Officer has jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997, for a period of six months from the date of the referral of complaint.

Evidence presented at the hearing shows that this complaint was presented to the WRC on 28th August 2017. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the leave period from the 1st April 2016 to the 8th June 2017.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)     4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)     one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)      8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The Respondent has breached Section 19 of the Organisation of Working Time Act, 1997. I require the Respondent to pay the Complainant €4,770 for the economic loss in respect of the annual leave (annual leave accrued for the period 1st April 2016 – 8th June 2017). In addition I require the Respondent to pay the Complainant an additional €2000 in compensation for breach of his rights under this Act. I require these monies to be paid within 42 days of the date of this Decision.

SIPTU submits that during the course of his employment the Complainant has never received an additional payment for Public Holidays. As the Complainant was not normally required to work on a Public Holiday S.I. No. 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) sets out the method of calculation his entitlement as being 1/5 of a normal week’s wages. This would equate to a payment of €200 euros for each of the 5 public Holidays that fell in the 6-month period prior to his dismissal. Those Public Holidays were New Year’s Day, St Patricks Day, Easter Monday, May Public Holiday and the June Public Holiday and equated to an underpayment of €1000 in that 6 months. Again, based on the previously referred to case law SIPTU are seeking that in addition to the monies owed that the Adjudication Officer would award compensation for the breaches of legislation that have been ongoing for a 4-year period.

The Respondent did not attend the hearing or provide any explanation for failure to do so. There was no evidence proffered by the Respondent or on their behalf to show that any public holidays’ entitlements were given to the Complainant.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, an Adjudication Officer has jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997, for a period of six months from the date of the referral of complaint.

The complaint was presented to the WRC on 28th August 2017 and therefore the allowable period that may be investigated is 1st March 2017 to the date of termination 8th June 2017. Therefore, there were four public holidays within the timeframe of my investigation: St. Patrick’s Day, Easter Monday, 1st Monday in May and 1st Monday in June. The evidence presented at the hearing shows that the Complainant was not ordinarily required to work on public holidays.

The Respondent has breached Section 21 of the Organisation of Working Time Act, 1997. I require the Respondent to pay the Complainant €800 in respect of four public holidays. I require these monies to be paid within 42 days of the date of this Decision.

The Complainant experienced severe delays in payment of his wages. The Respondent had rectified the matter on a previous complaint by the Complainant under the Payment of Wages Act relating to wages due in 2016. At the time of his dismissal the Complainant had again been left short 4 weeks wages in the previous 6 months totalling €4000.

The Respondent did not attend the hearing or provide any explanation for failure to do so.

I note that this complaint was presented to the Commission on 28th August 2017. Therefore, the period that may be investigated is 1st March 2017 to 8th June 2017 (date of termination). I note from the information provided by the Complainant that due to delays from January to June 2017 he accrued €4000 of unpaid wages. I find that over the period of approximately 23 weeks from January to June 2017 the Complainant accrued €4000 I unpaid wages. Therefore, on pro rata basis, for the period of approximately 15 weeks from 1st March 2017 to 8th June 2017 he would have accrued €2,608.

I order the Respondent to pay the Complainant €2,608, subject to statutory deductions within 42 days of the date of this decision.

Redundancy-unfair dismissal-annual leave-public holidays-minimum notice-payment of wages